Tuesday, March 25, 2014

RTL End Pushes Kids into Prison, Procurator Calls for Reform

Last year’s decision to eliminate the decades-old measure of reeducation through labor (RTL) required a number of institutional adjustments. It has also left open a number of questions about other forms of detention and how to deal with the kinds of individuals previously held in RTL.

The disappearance of RTL has left one particular group in a kind of institutional limbo: juvenile delinquents who have been sent for “custody and rehabilitation” (shourong jiaoyang) by the government. Like RTL, custody and rehabilitation is a practice that has been around since the 1950s. Aimed at dealing with juveniles who cannot be held criminally responsible for offenses under the law, custody and rehabilitation has also been the subject of scrutiny because of its relatively vague standards and non-judicial decision process. Since 1996, youths sent for custody and rehabilitation were held in RTL facilities, but the closure of those sites has left local authorities to improvise solutions.

As a recent opinion piece in the Procuratorate Daily notes, some of these youths have been transferred to prison facilities. In the piece (translated below), an official at the Supreme People’s Procuratorate warns that housing juvenile delinquents in prisons is a violation of Chinese law, a violation of their human rights, and potentially counterproductive from the perspective of turning teens away from crime. Instead, it is argued, China should make use of other facilities—such as the correctional work-study schools that proponents argue have helped lower China’s juvenile recidivism rate—to take in youths sent for custody and rehabilitation.

On December 28, 2013, the National People’s Congress Standing Committee passed a “Resolution on the Repeal of Regulations Related to Reeducation through Labor,” formally abolishing the RTL system. After the closure of RTL facilities, those persons who had been under RTL were released without having to serve the remainder of their terms. It has been a more difficult question, however, as to how to deal with the juveniles who had been sent to the RTL centers for custody and rehabilitation. Recently, some locations have been sending these youths to serve their custody and rehabilitation terms in juvenile reformatories (guanjiaosuo) or women’s prisons. I believe that this is inappropriate, as it is a violation of the relevant laws and regulations and infringes upon the lawful rights and interests of the juveniles who have been sent for custody and rehabilitation.

Sending youth to prisons for custody and rehabilitation is incompatible with the concept of respect and protection of human rights. According to Article 17 of the Criminal Law, juveniles under the age of 16 may not be subject to criminal penalties. Their parents or guardians should be instructed to discipline them or, when necessary, the government may subject them to custody and rehabilitation.

The subject of where juveniles should be held for custody and rehabilitation has gone through a process of historical development. In general, there has been a trend towards rule of law, mitigated punishment, and humane treatment, demonstrating the general policy toward juvenile [offenders] of education, reform, and rescue. China’s custody and rehabilitation system was created in the 1950s and was formally established with passage of the Criminal Law in 1979. In 1982, under the provisions of the Ministry of Public Security’s Notice on the Scope of Custody in Youth Reformatories, youth offenders serving criminal sentences and youths sent for custody and rehabilitation were both held for custody and rehabilitation in juvenile reformatories. After the Prison Law was promulgated in 1994, the Ministry of Justice issued a Notice on Transfer of Youths Sent for Government Custody and Rehabilitation to RTL Facilities for Custody and Rehabilitation in 1996 in order to implement the Prison Law correctly, and youths sent for custody and rehabilitation were transferred to RTL facilities. In 2013, the RTL system was eliminated, and some locations have transferred youths sent for custody and rehabilitation to prisons, violating the principle of respect and protection of human rights.

Transferring youths subject to custody and rehabilitation to prisons violates the Prison Law. According to Articles 2 and 16 of the Prison Law, prisons are state organs for the enforcement of criminal penalties and offenders who have been sentenced to fixed-term imprisonment, life imprisonment, or death sentences with two-year reprieve are to serve those penalties in prisons. Offenders to be imprisoned must have the “three documents and one form”: namely, copies of the procuratorate’s indictment, court verdict, and enforcement notice, along with the case-closure registration form. Otherwise, they may not be imprisoned. However, under the Criminal Law youths who have been sent for custody and rehabilitation are not subject to criminal penalty and do not bear criminal responsibility. They have a completely different status relative to criminal offenders. Transferring youths subject to custody and rehabilitation to prisons is a clear violation of the Prison Law and infringes on the lawful rights and interests of juveniles.

Sending youths subject to custody and rehabilitation to prisons does not benefit the education and protection of juveniles. All of the youths sent for custody and rehabilitation are juveniles under the age of 16. Some are even under the age of 14. These juveniles are undergoing physical growth, learning, and forming moral character. According to the provisions of the Juvenile Protection Law and the Law for Prevention of Juvenile Crime, the state shall protect the physical and mental health of juveniles, educate juveniles, and promote the moral, intellectual, and physical development of juveniles in order to protect their lawful rights and interests. Prisons are a place for the state to lock up and reform offenders serving criminal sentences. These offenders are vicious and pose a major threat to society. Locking up juveniles bearing no criminal responsibility in the same facility with offenders serving criminal penalties and having the same unit carry out management and education is not only unhelpful for the education, reform, and rescue of youths subject to custody and rehabilitation; it also has the potential to infect them with even worse vices or learn more criminal techniques.

To resolve the problem of where to house youths sent for custody and rehabilitation after the abolition of RTL, I have the following recommendations. First, we should retain the youth correctional centers (jiaoyang guanlisuo). Currently, each province, autonomous region, and direct-administered municipality typically has a youth correctional center in which youths sent for custody and rehabilitation can be held. We can also borrow from the foreign system of youth correctional schools and reform our youth correctional centers so that they are dedicated to the education and correction of youths sent for custody and rehabilitation. Second, we should make more use of work-study schools (gongdu xuexiao). Work-study schools are schools for the education and rescue of middle-school students who have violated the law or committed minor criminal offenses. These schools provide specialized half-work, half-study education for juveniles between the ages of 12 and 17. Currently, there are 67 work-study schools in China. If we send youths sent for custody and rehabilitation to work-study schools in accordance with the nature of work-study schools and the special characteristics of juveniles, it would be beneficial to the education and protection of juveniles.